Thursday, January 28, 2016

I just received a copy of the
2016 PBUS Winter Conference Agenda, and it includes a breakout session called
“Lessons from Beyond New Jersey: Understanding the Arguments and Solutions of the New
Generation of Bail Reform and Pretrial Release.” More specifically, it says the
panel will “inform bail agents of the threatening arguments being made against
the bail industry, arm agents with the ‘new’ vocabulary to use against such
arguments and most importantly, educate bail agents about what solutions can be
offered to minimize threats affecting the bail industry.” A good topic, right?
What could possibly be wrong with it?

Well, for one thing, the
person listed first on the panel is an insurance lobbyist who used to run the
American Bail Coalition, which is no friend to bail agents. In fact, when I first
started working in bail reform, ABC’s main stance was that there was no bail
reform movement, there never would be, and that there was no reason for anyone
to worry. It got that issue pretty wrong – the PBUS agenda is now calling it a
“new generation of bail reform,” something I figured out and published five
years ago. Since then, ABC has been wrong about a lot of things.

This generation of bail
reform, as most of you now know, is not so much a fight against bail agents as
it is a fight about money at bail – which is why the statement on the agenda of
all the “threatening arguments against the bail industry” is so misleading. For
example, I know the people working on the constitutional amendment in New
Mexico, and they rarely talk about the commercial bail industry. Instead, they find
fault with the lack of public safety in a money-based system and with secured
financial conditions that not everyone can pay. So if you get to the panel on
lessons from New Jersey and all they talk about is how to fight to keep things
essentially the way they are today – with bail agents only involved with
arbitrarily inflated financial conditions, with your focus only on court
appearance and not public safety, and with insurance companies making money for
doing nothing – then I hope you’ll ask them to give you some other ideas.

The real lesson from New
Jersey – and now numerous other states – is that when people are fully educated
in bail, they automatically move toward change, and that change involves
adopting a risk-informed system of pretrial release and detention (both for
assessment and supervision) using less or no money. This lesson is playing out
across the country, and I can’t even keep up with the states, entities, and
persons who are all going in the same direction. By arguing to keep things the
way they are, ABC is on the wrong side of history.

I’m about the only one saying
this, but I’m being honest. A true private/public partnership in bail is only
possible through what I call “private pretrial.” Some of my public pretrial
friends don’t like when I mention it, and others don’t care because they don’t
think you can pull it off. But I do, and I’ve seen it work. I’ve written about
it enough that I don’t have to explain it here, but realize this: because the
bail insurance companies wouldn’t exist in a “private pretrial” world, they’ll
tell you that it’ll never work and convince you to keep fighting for the status
quo.

Last month alone I worked
with the White House, DOJ, five different states (of over 20 states that I worked
with last year), and numerous public and private entities trying to “fix” bail,
and they all intend to make major improvements because they don’t perceive
anything valuable about the existing system. Meanwhile, the current head of ABC
was on some funny little radio show calling bail reform “an epic battle” and
arguing that if we dare to move from the way things are, we’ll be “setting a course
for planet hell” and be required to create “state and local level U.S.
Marshall’s Service” to go catch all the inevitable skips. Okay, maybe talk
radio is made for hyperbole, but man, that last part is just plain crazy.

Don’t be fooled, bail agents.
The bail insurance companies will use the “war against you” analogy simply to
get you riled up to fight the bail insurance companies’ fight. But their fight
is simply not in your interest. If you only believe one thing that I say,
believe this: no matter what the bail insurance companies say, most states have
decided that the current system – with all of those huge amounts of money based
on charge – is fundamentally flawed, and so it’s going to change. Your goal
should be to see where you fit into the new system. Arguing for the status quo,
which is really the only argument the insurance companies have that will continue
paying for their executives and their lobbyists, will ultimately only ensure
that you’re not any part of the system we create.

So what’s wrong with the PBUS
agenda? Well, from here it looks mostly
as if the panelists on bail reform are going to try to convince you to fight to
keep the status quo – to “arm” you with a new vocabulary, to help you to counter
various arguments and to “minimize threats” to the way things work today. But
they don’t seem to be offering any advice on how you can fit in when the
country makes its inevitable shift. I won’t be there, but maybe you should ask
them about all that.

Wednesday, January 13, 2016

When I was a boy growing up
in the summer of 1968, my dad, who was asked to deliver a speech at the Republican
National Convention that year told me, “You should always start off with a
joke, and then hit them with your most important topic.” Last night, during the
2016 State of the Union Address, President Obama did just that. After the
obligatory joke, the first substantive topic out of his mouth for the future was
“criminal justice reform.”

Some journalists have written
today that by merely mentioning it but not going into detail, the President was
giving the topic the short shrift. But that’s not true. Criminal justice reform
didn’t need an explanation. It didn’t need to be sold to Congress, and it
certainly didn’t need to be justified to the American people. It’s a topic that
is infinitely important in defining who we are as Americans and how we are seen
by the rest of the world. It’s a topic that virtually everyone is behind, and
that will most definitely happen. And it’s a topic that necessarily includes
bail reform.

About a month ago, the White
House and the Department of Justice co-hosted a meeting on fines, fees, and
bail, which was designed to “build on the Administration’s commitment to
criminal justice reform” by discussing and sharing ideas about how to implement
“common sense reforms so that financial obligations imposed by the government
do not lead to unnecessary involvement in the criminal justice system or
exacerbate poverty.” It was a pointed meeting about money in the criminal justice
system, and about how that money turns criminal justice on its head.

Those of us bail types who
were there provided an ample list of common sense things the federal government
could do to help bring bail reform to both the federal and state systems. But I
don’t think they needed a list. From the first speech by Attorney General Loretta
Lynch, to one of the last by White House Counsel Neil Eggleston, it was clear
that the White House and the Department of Justice had a firm grasp on how bail
had been perverted in America since the mid-1800s into a detention-causing
process through the use of secured money conditions. It was clear to them, as
it is to virtually anyone else in America who does not profit from that system,
that the current administration of bail is wrong and must be fixed.

In 1776, Thomas Paine
published “Common Sense,” a pamphlet that inspired the American Colonies to
declare independence from the tyranny of British rule. In the very first
sentence of its introduction, Paine wrote: “A long habit of not thinking a
thing wrong gives it a superficial
appearance of being right, and raises
at first a formidable outcry in defense of custom. But the tumult soon subsides.
Time makes more converts than reason.” To
Paine, American independence not only made sense, it was also inevitable.

Bail reform is no different. For
too long we have allowed our system of pretrial release and detention to be crafted
to suit corporate insurance interests with no regard to whether using money
even makes sense. Like Paine’s observation of British rule, we have simply
spent too long not thinking money
bail wrong – thereby giving it the unfortunate
home court advantage of custom and habit. Moreover, by merely announcing a
desire to base release and detention decisions on a common sense system of
assessing a defendant’s actual pretrial risk versus his or her charge (which
may or may not indicate risk), states are inviting the inevitable reform
involved in crafting entirely new statutes and constitutional bail provisions that
are currently based on charge.

My dad sometimes told me that you could end a speech with
a joke, too, but I won’t because this is no joke. The secured money bail system
not only causes countless harms to society, it defies virtually every notion of
American freedom and equality that we defend in our founding documents. Its very
existence makes us worse, and common sense dictates that we fix it now.

Thursday, January 7, 2016

The American Bail Coalition
just sent out a memo trying to put bail agents at ease in the face of a growing
number of federal lawsuits undoing money bail in America. In it, ABC raises a
few points that are worth a second look if you’re a bail agent.

First, ABC says that the San
Francisco suit is only about bail schedules, and not about abolishing what a
recent article called “cash bail,” necessarily extending to surety bonds.
Later, though, ABC says it helped the California Bail Agents with its motion to
intervene in San Francisco, and that particular motion states: “If Plaintiffs’ requested preliminary
injunction is granted, Proposed Intervenors’ entire industry would be
destroyed” and “Not only would that destroy
Proposed Intervenors’ entire industry, but it could undo thousands of existing
bail surety contracts whose purpose would be declared unconstitutional.” ABC
knows what’s going on. They just don’t want you bail agents to figure it all
out.

Second, ABC says that it’s worked
tirelessly with virtually every criminal justice stakeholder group to oppose
the federal suits. Really? Why, then, has virtually every criminal justice stakeholder’s
national organization published policy statements advocating adopting a risk
based versus a money based system? Believe me, ABC is alone in this thing. It’s
their lobbyist working with its member insurance companies’ other lobbyists
trying to figure out a way to keep the money rolling in.

Third, ABC says that it’s prepared
all kinds of legal documents that it wanted to get into some earlier federal cases,
but it couldn’t because those suits were settled too fast. Yeah, right. I’ve
been watching ABC for a while now, and it has mostly regurgitated the same
tired arguments for the current system (ABC calls them showing the "fatal flaws" in the claims of reformers) and has consistently lost by doing so. It
lost here in Colorado, it lost in New Jersey, it lost in New Mexico, it lost in
Wisconsin, it lost in Indiana, it lost in Utah, and it’s losing in virtually
every state it jumps into. If there are "fatal flaws," as ABC says, don't you think it would win every so often? So ABC will continue to lose – and to take bail agents
down with it – as long as it continues to argue for the status quo. “The
American Bail System works,” ABC says, but that’s absolutely false. The
American bail system hasn’t worked since 1900, which is why we’ve witnessed
generation after generation of bail reform since then. Think about it, bail
agents, if it were working, would some 25-30 states be calling me asking how to
change their entire bail statutes and constitutional bail provisions? Saying that bail is working when everyone else
says it isn’t working makes people think that the insurance companies don’t
have a clue.

Finally, ABC says it’s hiring
(meaning that it’s using the money that you bail agents give them to hire) “national
federal litigation counsel” to try to get into these suits so they can further argue
the status quo in court. Now I used to
work for the federal courts, including for the federal court of appeals, and
intervening into a suit isn’t the easiest thing to do. Think of it this way. At
their core, the suits are challenging judicial bail setting practices (some
admittedly delegated). Does that mean we let everyone in the suit who has some
remote interest in bail setting? Do we let in the GPS monitor manufacturers?
How about drug testers? How about the people who make lunches for the inmates
in jail? For goodness sake, if we lower the jail population, that lunch-making
industry might fail.

The bottom line is that the
bail industry is tangential to the actual decision to release or detain a
defendant. To the extent that it isn’t – meaning to the extent that the bail
industry has actually usurped the judicial decision itself – then it shouldn’t
be allowed to exist in that form anyway. And what if ABC does get in? Well,
even then it’ll probably just keep saying the same old stuff – “money bail works,” “money
bail’s fair,” “everyone else is wrong.” They’ll keep spending money to say
these things right up until they’re making exactly the same amount of money
that they’re paying their last lobbyist. And even then, they’ll probably just
hire a cheaper lobbyist.

ABC wrote a funny line at the
end of its document. It said that those of us seeking change are “bastardizing”
our criminal justice system and “abandoning the American bail system.” Not
true. The changes that we seek – and by “we” I mean people like me and all of
those stakeholders I mentioned earlier – are based on fundamental
constitutional and historical American legal notions, such as due process,
equal protection, the right to bail, and the presumption of innocence. If it
takes a federal court to tell the states just how far from these notions they
have strayed, then so be it. Moreover, we aren’t abandoning the American bail
system. No, we’re just returning to the American bail system that existed before
the commercial bail industry got involved, when unsecured bonds assured that virtually every bailable defendant
would not be jailed for failure to pay money.

ABC is spending a lot of time and
money to keep things the way they are. The problem is that nobody else in
America wants to keep things the way they are. If I were a bail agent, I’d try
to figure out how much money I give the insurance companies, and then I would
spend that money, instead, on redefining my role in pretrial release and
detention in America. There may be a place for private pretrial in America, but
the window for finding that place is rapidly closing. By refusing to accurately
see the future, ABC is practically slamming that window shut.

About Me

Hello everyone! I'm a criminal justice system analyst with 25 years of legal experience. I was editor-in-chief of the law journal in law school, and I worked as a law clerk to a federal appellate judge right after graduation. I then worked in private practice for several years in Washington DC before I came back to Colorado, where I became interested in criminal justice. I worked for both the state and federal courts of appeals as a staff attorney doing criminal appeals, and I also taught at Washburn Law School for a year before I got involved in the local criminal justice system issues in Jefferson County, Colorado. In that job I quickly realized that there was a lot of room for criminal justice reform, and that's what I've been doing ever since.

For the past several years I've been working on reforming America's traditional system of administering bail. Believe me, it really needs it. I started this blog because I was getting somewhat fed up with all of the slanted misinformation and self-serving research and analyses circulated in the field. This is my little way of chiming in.

I think I've had plenty of formal education, and I hope I'm not forced to get any more (although I'm taking two classes on Coursera!). I have a law degree, a masters of law degree, and a masters of criminal justice degree in addition to the two degrees that I got in college.

I am currently the Executive Director of a Colorado nonprofit called the Center for Legal and Evidence-Based Practices. It serves as my platform for performing neutral and objective research and analysis of topics relating to bail and pretrial justice. I hope that you'll get something out of this blog, which will undoubtedly contain a few things you aren't likely to find anywhere else.